What:	The E-Government Act of 2002
When:	Passed by Congress and signed into law in December 2002
Why it matters:	The E-Government Act became seminal legislation that addressed everything from cybersecurity to privacy to the role of OMB in overseeing and managing federal IT.

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The fact that the E-Government Act became law and turned into one of the most important pieces of information technology legislation in the last 20-plus years was a test of will, perseverance and luck.

It was the dedication of former Sen. Joe Lieberman (I-Conn.) to changing how agencies serve citizens. It was former Rep. Tom Davis’ (R-Va.) willingness to work across the aisle. And it was leaders from both the political and career rank of the George W. Bush administration who chose not to squander a generational opportunity to drive change in government management.

And even with all of these champions, it was a decision by the White House counsel that ended up being the final piece to this complicated puzzle (more on that later).

Congress passed and Bush signed the E-Government Act into law in December 2002.

It was a stand-alone bill, the likes of which rarely happens anymore in Congress.

It was a government management bill that brought with it little political capital for its supporters on Capitol Hill.

And it was a bipartisan bill where Republicans and Democrats found a way to compromise in order to accelerate the use of technology to digitize federal services.

Looking back almost 23 years, the congressional staff members and the administration officials who shepherded the legislation through the process say the E-Government Act has been a foundational law that has helped agencies transform everything from cybersecurity to customer experience to legacy system modernization.

President George W. Bush signs the E-Government Act of 2002 during a signing ceremony in the White House as Reps. Jim Turner (D-TX), left, and Tom Davis (R-VA) look on December 17, 2002 in Washington, D.C. The act is intended to improve how government agencies use information technology, specifically the internet. (Photo by Stefan Zaklin/Getty Images)

“It really shifted the focus in continuum that started in, I’d say, the mid-1990s for how to modernize government and the heart of understanding the difference between the Clinger-Cohen Act, which basically was getting rid of the Brooks Act, and moving into buying commercial IT,” said Mark Forman, the first administrator of E-Government and IT at the Office of Management and Budget during the Bush administration. “By the time you hit 2000, you’re in the dot-com era, and the heart of the dot-com era is reducing the transaction cost between businesses and consumers, between government and citizens, and government and businesses. So how do you reduce the burden or the difficulty in interacting with the government?”

The combination of the law and the Bush administration’s e-government initiative, which kicked off in 2001 with the Quicksilver projects, started the process to relieve the burden on citizens and businesses through the use of commercial and modern technologies.

Perseverance

There are many reasons why the E-Government Act almost never happened. But from the beginning, Lieberman and his team, led by Kevin Landy, a former Senate Committee on Government Affairs counsel and the lead staff member on the E-Government Act, continued to push from all sides no matter the obstacles.

Landy said when Lieberman introduced the E-Government Act in 2001, there was little chance of it becoming law for all the reasons why getting any bill through the process is difficult. Lieberman, a Democrat at the time, was the ranking minority member of the committee, but Chairman Fred Thompson (R-Tenn.) had little interest in the bill.

“We struggled to find a Senate Republican cosponsor. It was even essential to find a Republican to cosponsor this bill and at that time, that was incredibly difficult. No Republicans on the committee would cosponsor it. And I called a lot of people, and finally Sen. Conrad Burns (R-Mont.) was willing to be the chief cosponsor on the Republican side,” Landy said. “Then the thing that happened by chance — and otherwise this bill would have been dead, since Fred Thompson was never going to put it on the agenda if it were up to him — was the control of the Senate flipped in June. We introduced it just months earlier, and in June of 2001, [Sen.] Jim Jeffords of Vermont went from Republican to Democrat, and all of a sudden Sen. Lieberman was chairman. He could schedule a hearing, which Fred Thompson would not have done. He could schedule a markup, which Fred Thompson would not have done. So that was the starting point.”

Lieberman held a hearing where Sean O’Keefe, OMB’s deputy director for management (DDM), offered little support for the bill.

Specifically, the administration didn’t like a provision to create a federal chief information officer at OMB.

Landy said a pivotal moment came during the hearing when Lieberman asked O’Keefe several times if the administration would work with them to find common ground on the bill.

“Finally, he had to say yes, and that’s what led to these very lengthy, grinding negotiations where you had to get to ‘yes,’ at least in the committee. You aren’t going to get to ‘yes’ in the committee, without Sean O’Keefe, without [OMB’s] Dan Chenok as a proxy for Sean O’Keefe and Mark Forman,” he said.

Chenok, the OMB branch chief and now executive director of the IBM Center for the Business of Government, credited not only Landy, but Thompson staff members Ellen Brown and Robert Shea, and Dave McClure, the director of IT management at the Government Accountability Office, for coming together during lengthy negotiations.

“I remember Sean pulling me into his office and saying, Senator Lieberman wants to work out a bill. It needs somebody who can do a sustained negotiation over time. And he said, I remember these words specifically, ‘you’re the perfect guy because you’re career and you’re like the technology guy.’ I said, ‘Yes, sir,’” Chenok said. “This was before Mark Forman arrived, and when Mark got there, we then went into a process of negotiating for about the better part of a year.”

Forman said Lieberman and his staff’s commitment to buying into the other party’s strategy was not an easy task.

“His openness was clearly one milestone,” Forman said. “The other is, how do you get the House on board? That’s where this idea of the Government Information Security Reform Act (GISRA) versus the Federal Information Security Management Act (FISMA) came in. At that point, we had the first analysis of how bad the security of the systems was, and I don’t think there’s any question that having another law that may be built on some of the learnings of the first iteration of the GISRA audits was a positive. The fact that there was a pathway to bring the House on board was a win, and again, Sen. Lieberman’s openness to that was also a win.”

Will

Despite Lieberman now running the committee, the bill was by no means a done deal. While Landy, Chenok and a host of others negotiated section by section, including the first updates to privacy laws in nearly 15 years, statutory changes to how statistical agencies collected and used data, and some innovative ideas like share-in-savings and a technology employee transfer program, the administration and Lieberman were far apart on the idea of a federal CIO.

Chenok said the administration and Lieberman’s staff got to a resolution on just about every issue, but the idea of creating a federal CIO was a non-starter.

The administration was dead set against creating a federal CIO at OMB, Forman and Chenok said. OMB made the case during O’Keefe’s testimony that the DDM was the actual federal CIO.

Landy said Lieberman believed creating a new Senate-confirmed federal CIO position in OMB would lead to better technology outcomes across the government. It would give the person the power to break down information, data and system silos and bring agencies closer together.

“We decided to table the CIO provision. If we can make progress everywhere else, maybe it will seem like we have enough there to be willing to compromise on the CIO position,” Landy said.

And as the two sides made progress, there was a fateful meeting at Cactus Cantina in the Cathedral Heights neighborhood of Washington, D.C.

In the back room over beer, margaritas, chips and guacamole, Landy and Chenok hammered out the final pieces, including the future of the federal CIO provision.

“We were there a couple of hours, and we had set the agenda for it before the meeting. Then we basically said, ‘All right, let’s agree that we’re not going to leave until we figure out a way through this. We did that,” Chenok said. “We both knew we needed to go back and make sure that our respective leadership supported that agreement. In the end, they did because it was too important to get the whole bill out. The Senate got an OMB leader for IT, which was Mark, which was great because Mark was fantastic. And the administration was able to retain the position that this new position should not be Senate confirmed.”

The Senate and administration found common ground, but the House was another story.

Once again, Chenok and Landy said it was unclear if there was enough support in the House for the E-Government Act.

Former Rep. Jim Turner (D-Texas) introduced a companion bill in the House that mirrored the Senate version, but it now came down to getting Republican support.

This is where Davis, the former technology contractor executive who represented dozens of companies in his district, came in.

Melissa Wojciak, the former staff director for the House Government Reform and Oversight Committee, and now the vice president of government affairs at Monster Government Solutions, said Davis was looking for a vehicle to update GISRA with a new bill called FISMA.

She said Davis also wanted to push forward some procurement reforms to make buying commercial IT easier as well as some innovative ideas like share-in-savings.

“I think it was a pretty collegial process in terms of legislation that we negotiated in comparison with other pieces of legislation that we had written at the time,” Wojciak said. “I had a very close relationship with the minority staff, and in terms of a negotiation, the meetings were pleasant. There were some strong disagreements, but everyone there wanted to work them out. Everyone wanted to pass a piece of legislation.”

Once Davis saw a path for FISMA and some of his other acquisition priorities, the E-Government Act moved through the House.

“I think people just didn’t think it was that important, or they just didn’t realize the impact. Oftentimes I don’t think they realize the impact that government reform initiatives can have on improving overall performance in the federal government,” Wojciak said. “To Tom’s credit, he always believed very strongly in government reform and that was in his interest as soon as he got elected to Congress. I think a lot of members just didn’t pay the same level of attention or realize all that could be impacted by doing the legislation that we wrote so it was a non-controversial process.”

The House passed the E-Government Act under the suspension of the rules. The Senate passed it by unanimous consent.

Luck

The E-Government Act still was not a done deal. Although it had passed the House and the Senate, it still needed President Bush’s signature.

But Congress, in its infinite wisdom, actually passed two other cybersecurity bills at the end of 2002.

Chenok jokingly referred to the three bills as old FISMA (GISRA update), bad FISMA (Cyber Security Enhancement Act) and new FISMA (E-Government Act), meaning a key provision of the E-Government Act was at risk of not being truly enacted.

“The OMB counsel worked with White House counsel to make sure that the enacted bill, the E-Government Act, arrived last. The President signed the other two acts that had the other two versions in it, and then he signed the E-Government Act with FISMA,” Chenok said. “We basically had the counsel’s opinion that said because it was the last statute signed, that this FISMA would become the law of land. It’s always important to work with White House counsel to figure out what’s the law that is the governing law, and how do we make sure that that law is the one that is going forward for agencies to follow.”

That wasn’t the only time luck intervened with the bill.

Landy said during the Senate committee’s markup, he was prepared with a large three-ring binder to answer questions about each section to help Lieberman.

“The E-Government Act was very complicated, and Sen. Lieberman wasn’t necessarily fully versed on every little provision, like the geospatial changes and others. So we did something that I have never seen done in a committee markup, or at least not our committee: There was a microphone placed on the corner of the table that all the senators are sitting around, and that was for me next to Sen. Lieberman. So if Sen. [Ted] Stevens (R-Alaska), who was cantankerous, or somebody else said, ‘I don’t understand what geospatial such and such is,’ I was supposed to be the one to answer that question,” Landy said. “At the same markup, the 9/11 commission bill was also on the agenda. This is the way I look back at it: The Republicans did not want to vote on that bill because they did not want to oppose it, even though the White House wanted them to oppose it. So the markup hadn’t really even started when Ted Stevens, the ranking Republican on the Appropriations Committee, walks into the room and more or less says, ‘I propose that we move to pass the entire agenda by voice vote.’ Sen. Lieberman looked kind of surprised, and everyone said, ‘aye’ and that was it. There was no debate on any of those bills.”

The E-Government Act sailed out of committee without any debate or votes and moved on to the full Senate.

E-Government today

At the same time the bill moved through the Congress, Forman and OMB were leading implementation of the Bush administration e-government initiative. The 25 e-government initiatives spanned four portfolios. The efforts to consolidate and simplify federal services were all happening at the same time.

Forman said the E-Government Act and the Bush administration were trying to solve similar problems.

Mark Forman is the former administrator for e-government and IT at OMB.

“I think the Hill thought the government was way behind, and people couldn’t access information services online. I think those of us on the inside saw it quite differently. The government was online in the same convoluted, siloed manner that it was handling its paperwork, and online generally meant downloading a form. Maybe you could email it, maybe you could fax it. But it was convoluted and not very efficient,” he said.

Forman added the bill also provided money to help agencies digitize under the E-Government Fund.

He said OMB also worked on a funding model to help pay for these changes, commonly known as “pass the hat,” at the time.

“Almost all of these were consolidation of redundant activities, and you’re consolidating around the customer. We issued Clinger-Cohen letters in several instances, but we also had to do the rack and stacking on the budget side. So Dan and his team figured out a magical budget formulation model, which OMB on the budget side and in the resource management officers agreed to,” he added.

The two complementary efforts laid the foundation for future digital transformation initiatives, and federal IT continued to evolve.

The Obama administration put an end to the CIO debate by naming Vivek Kundra the first official federal CIO.

“Our major single focus, the single most important idea in the bill, was centralized leadership on these digital government, information management, information technology areas where a leader could harness agency resources and they could work together,” Landy said. “I think that’s happening successfully. Not always enough, but I would like to think that the E Government Act was one of the things that pushed it along.”

Chenok agreed that the E-Government Act raised the authority and influence of OMB around IT issues.

“OMB always acted like it had authority, but it didn’t have a statute for technology. Now there’s a political and a Presidentially-appointed person who’s in charge of that area of OMB management. That gave more authority to OMB to work, especially within the building, within the OMB organization, with our budget colleagues, to drive forward priorities that the director supported,” he said. “It also gave more authority to Mark, acting on the director’s behalf, to bring together what were the early elements of shared services.”

The other thing the bill did that remains a key element today is around cybersecurity. Chenok said the integration of FISMA into the E-Government Act signaled that cybersecurity should be a part of technology and not a side or even an afterthought.

“People often call it security by design today, and that became sort of a statutory imperative because you have in one statute different titles talking about these things,” he said. “I think that that reinforced the point that CIOs need to think about security as part of technology development.”

Forman said having congressional support gave the entire E-Government effort added authority and momentum then and still today.

“I do think that the advances in government security, in the applications layer, were largely a result of the E-Government Act. GISRA was good, but E-Government, with FISMA, took it to another level. So I think that’s a positive,” he said. “On the E-Government side, the flavor that we brought into that was that e-government and the use of technology cannot be done independent of the business process and the focus on the citizen, and that the focus on the citizen really needs to be cross agency, as opposed to siloed. I just feel there’s so much still that needs to be done in busting silos, but I am very happy that, going back to the E-Government strategy and the E-Government Act, we were able to get everybody understanding it wasn’t about websites. It was about simplifying access to the government and that the technology was the facilitator.”

The post The foundation set by the E-Government Act remains strong today first appeared on Federal News Network.

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